Charlotte home and Democrat., 1887-03-25
Digest Of N. G. Suprame Court Decisions
Spring Term 1881.

Held, as the presumption Of grant arises
from adversary and continuous use after
twenty years, 90 the same period of disuse
occurring afterwards presumes q surren
der or extinction of eucumbrauce, upon
the seryient land. Continuous use. as OF
right, for the prescribed period is evidence
of the requirement OF an easement. In.
terruptions of the use unless when known,
promptly re-asserted, rebut the presump.
ton. Interruptions after the presump.
tion has arisen, furnish evidence OF an
abandonment to be considered by the
Jury.
Evans Va. ge.-Attachment.-
Held, Clerk of the Superior Court can
issue an ordinary process in his own &C.
tion including warrant Of attachment.
Bank w. Harris.-Statute of Limitation.
Part payment.-Effect of unperformed
agreement to credit Q note with the
amount of another debV due to the debtor
Held, it is not the mere endorsement of
q credit upon the note, even when sup
ported by counter claim, by the holder
which will have the effect. of reviving the
liability, bat an actual pay ment made and
received ss such, of which the entry is ev-
idence, as the fact may be otherwise shown.
A has q bond against B in a smaller sum.
They meet and agree that the claim of B
shall be discharged BY sppropriating what
10 due from him TO A to what hs owes A.
This agreement operates co-instanti, and
10 partial payment and removes the bar
/ of the Statute of Limitations.
| Woodleaf Va. Merrill. Held, when there
is no controversy disclosed in conflicting
allegations and denials in the pleadings,
/ The court cannot take cognizance of the
| cause.
The court cannot entertain bill for the
construction of devise. Devises claim
| by purchase; their rights are purely legal
and must be adJudicsted by courts Of law.
Syme, administrator, vs. Trice and 9TH
ers.-Held, the practice is TO attack an ir-
regular Judgment by q motion in the
cause. The court will not set aside q
Judgment affecting the property of an in
fant. who was eighteen years of age when
served with process, and who did not ap-
pear in the proceedings as an infant, and
who suffered no substantial injustice, es-
pecially when the rights of third parties
| without notice, have intervened.
Gully vs. s.-Homestead.-A home
stead having been once laid off, in the alb
sence of frand or irregularity in the pro-
| ceediug, it remains homestead and is not
| subject to be laid off second time at the
instance of another creditor. "What
equitable remedy, if any, q creditor might
have, if the homestead property had great
lY increased in value, the court is not call
ed on to decide in this case"
Weatherbee vs. Farrar.-Where hus-
band mortgaged his crop, stock, &C., to
| secure q note of % 500, the proceeds OF
which on being discounted was to be used
| to make his crop, and afterwards convey
ed the same property to . trustee to secure
was made obtained further advances from
the mortgage to prepare it for market
and agreed. that these last advances
should be paid for. out of his crop;
Held, that the trustee of the wife was
not bound thereby, but that the mortga-
gee was liable TO account to the trustee
for the overplus after the satisfaction of
the original debt secured by the mort
gage.
Held, that the wife lost none of her
remained silent when che first heard of the
previous misapplication of a part of the
crop to the payment of the unsecured ac-
count dusby her husband TO the mort
gage.
State vs.. Gillmore.-Held, when In the
trial the evidence is conflicting and pre-
seuts the case in two or more distinct as
poets, one or more of them favorable to
one side, and one or more favorable to the
other, the court, in applying the law,
should direct the attention of the Jury to
such various aspects, more especially when
called upon to do so
Frank w. Robinson.-Held. that while
a judgment creditor may seize under exc
cution property conveyed in fraud, he
may also attach the conveyance and have
the fraud, il any, declared, so that when
the property is sold, it may be sold free
from doubt as to title.
Where there are circumstances fit to be
left.tO jury, add the trustee is q non-res-
ident who may remove the goods beyond
the State, the case of possible irreparable
injury is presented which justiies the in
terposition of the court to preserve the
fund.
Brooks vs.. Brooks ex ct als.-Held,
where the complaint states facts suffi cient
to constitute cause of action and the de-
PENDANTS appear aud make defense on the
merits, making no objection on account of
Irregularities, they must be held to have
waived all Irregularities
Mcneil q Cows. Lawtou Held, where
an action has been referred to referee.
it is still 10 court and plaintiff may take a |
non-suit a. If there had been no reference. |
But the right to take q non-suit cannot be |
exercised where defendant has filed q coun- |
ter claim, and objects.
Clayton We. Coyle.-Ejectment by ces-
tui que trust.-Defence, possession under
color of title. Held, that the interests of |
cestui que trust 10, as against strangers to
the deed in trust, under the protection OF
the trustee and shares the fate that befalls
the legal estate by his inaction or in
difference The annexation of trusts to
the legal estate cannot arrest the opera